Faulkner v. Bailey

123 Mass. 588, 1878 Mass. LEXIS 210

• Court: Massachusetts Supreme Judicial Court
• Decided: January 21, 1878
• Status: Published

Opinion

Gray, C. J.

It was formerly held in this Commonwealth, that an acknowledgment or promise, or a part payment, by one of two joint debtors, took the debt out of the statute of limitations as against both., Frye v. Barker, 4 Pick. 382. Sigourney v. Drury, 14 Pick. 387, 391. But the rule has been wholly changed by statute.

By the St. of 1834, o. 182, (which followed the St. of 9 G. IV. e. 14, commonly known as Lord Tenterden’s Act,) it was enacted, that no acknowledgment or promise by words only sheuld be deemed sufficient to take any case out of the operation of the statute of limitations, or to deprive any party of the benefit thereof, unless in writing and signed by the party chargeable thereby; and that when there should be two or more joint contractors, no one of them should lose the benefit of the statute so as to be chargeable by reason only of a written acknowledgment or promise made and signed by any other or others of them; “ provided always, that nothing herein contained shall alter or take away or lessen the effect of any payment of any principal or interest, made by any person whomsoever.” Under that statute, although an acknowledgment by one joint contractor would have bound him only, a part payment by one might still have bound both.

The provisions of that statute were substantially reenacted in the Rev. Sts. c. 120, §§ 13-17, in the last of which sections it was provided that “nothing contained in the four preceding sections shall alter, take away or lessen the effect of a payment of any principal or interest, made by any person.” But by § 18, it was further provided that, in case of two or more joint contractors, “ no one of them shall lose the benefit of the provisions of this chapter, so as to be chargeable by reason only of any payment, made by any other or others of them.” The effect of a part payment, as of an acknowledgment, was thus limited to him who made it. Peirce v. Tobey, 5 Met. 168. Balcom v. Richards, 6 Cush. 360.

All these provisions of the Revised Statutes are reenacted in the Gen. Sts. c. 155, §§ 13-17, without change, except in incorporating the provision of § 18, as to the effect of a payment by a joint contractor, into § 14, which limits the effect of an acknowledgment or promise by a joint contractor. This transposition cannot be construed to enlarge the operation of the provision of the Gen. Sts. c. 155, § 17, (which reenacts in very words the provision of the Rev. Sts. c. 120, § 17, above quoted,) without altering the effect of a payment at the time of the passage of the General Statutes, and wholly defeating the provision of § 18 of the Rev. Sts. retained in § 14 of the Gen. Sts.

The cases cited for the plaintiff contain nothing inconsistent with this view. In Ramsay v. Warner, 97 Mass. 8, 13, the question was of the debt to which the payment was to be applied, not of the party to be bound ; in Sigourney v. Wetherell, 6 Met. 553, the payment was made by the person sought to be charged; and in Sage v. Ensign, 2 Allen, 245, it was made by one of two partners, who, by the very relation between them, was authorized to bind his copartner. But under the General Statutes, as under the Revised Statutes, a part payment by a principal debtor does not take the debt out of the statute of limitations as against a surety. Judgment on the verdict.